Interim v Final Parenting Orders

In Australia, parenting orders are court-issued legal orders that outline parental responsibility for a child. While the orders are intended to provide clarity, the process of obtaining parenting orders can be complex, slow and frustrating. In this context, it is important to understand the distinction between interim and final parenting orders. This article explains the legal framework, and the procedural and practical differences between interim and final parenting orders in Australia.

What are parenting orders?

Parenting orders are legally binding decisions made by the Federal Circuit and Family Court of Australia (FCFCOA) concerning parenting arrangements for children. These orders may address a wide range of different issues, but essentially, they come down to deciding:

• where the child lives
• who the child communicates with, and
• who is able to make decisions about the child.

Parenting orders are either interim (temporary) or final (permanent unless varied). Each form serves a specific purpose in family law proceedings.

What are interim parenting orders?

Interim parenting orders are temporary orders made at an early stage of family law proceedings. Their primary purpose is to establish immediate, short-term arrangements for the care of children until a final hearing can determine the long-term arrangements. Most family law cases take at least a year to reach a final hearing, so parties usually attend at least one interim hearing during that time.

The key characteristics of interim orders include:

• they remain in effect only until the court makes final parenting orders. They are not intended to resolve all issues in dispute;
• they aim to provide stability for children during the litigation process. Interim orders often maintain the status quo unless there is a compelling reason to alter existing arrangements, and
• result from shorter and less detailed hearings, relying primarily on affidavit evidence and submissions rather than oral testimony or cross-examination.

When making interim orders for the care of a child, the court applies the same legal principles as it will when it makes final orders: that is, it focuses on the best interests of the child as set out in the Family Law Act 1975. As such, the court focuses on:

• protecting the child from harm, particularly in cases involving allegations of family violence or abuse,
• providing the child with stability, which often means maintaining existing arrangements to avoid unnecessary disruption pending final orders (unless there are concerns about the child’s welfare), and
• preserving a child’s relationship with important people, provided that this is safe and in the child’s best interests.

Interim orders can also be used to progress a parenting matter prior to a final hearing. Towards this goal, the court might make interim orders to:

• insist that the parties complete a post-separation parenting program,
• restrain a parent from a certain action, such as taking the children interstate,
• require the parties to attend a family consultant who will prepare a family report, or
• order a party to undertake a drug test.

What are final parenting orders?

Final parenting orders are permanent orders made by the court to resolve disputes regarding children. These orders are legally binding, enforceable and remain in effect until:

• the child turns 18
• the court varies or discharges the orders, or
• both parents agree to modify the arrangements.

How are final orders decided?

As with interim orders, final orders are determined by the rules within the Family Law Act 1975, and specifically by applying the best interests of the child test. The legislation requires the court to establish:

• the parental arrangements that best promote the safety of the child (and anyone who has care of the child), and particularly limits their exposure to abuse, neglect and family violence,
• any views expressed by the child,
• the psychological, emotional, developmental and cultural needs of the child,
• the capacity of each party who would assume parental authority to provide for the child’s needs,
• the benefit of the child having a relationship with their parent and other significant figures in their life, and
• any other relevant circumstances.

Characteristics of final orders

The aim of final orders is to bring a parenting matter to an end, and provide parents and children with certainty, as well as reduce the burden on the court system of parents who return to court again and again to resolve parenting matters. To achieve these ambitious goals, final orders need to be comprehensive, extensive and certain, as explained further below:

Aim for comprehensive resolution

Final orders ideally address all parenting issues for a family, including care arrangements, decision-making responsibilities, and specific requirements such as education and healthcare. Final orders are rarely made for isolated aspects of a parenting matter, with other matters left undecided pending further enquiry. The orders nominally apply until the youngest child concerned turns 18. In practice, however, most parents take a more flexible view of parenting order as their children grow older and express their wishes about how they spend their time.

Based on extensive evidence and enquiry

Unlike interim orders, which are short term solutions designed to last only as long as the dispute, final orders are intended to reflect an exhaustive exploration of the issues. Final hearings allow for the presentation of detailed evidence, including oral testimony, cross-examination, and reports from independent experts (such as family consultants or psychologists). While there are some limits, in general the court is committed to exploring all the evidence that is pertinent to establishing the best interests of the child.

Provide stability and certainty

Final orders are intended to provide long-term stability, allowing children and parents to move forward without the uncertainty of ongoing litigation. While some families find themselves back in family court, the aim of final orders is to allow parents to make all future decision based on the parameters of the final orders.

Interim and final parenting orders play distinct, but interconnected, roles in Australian family law. While interim orders provide a temporary framework to manage parenting arrangements during litigation, final orders offer a comprehensive resolution to disputes. Contact Go To Court Lawyers on 1300 636 846 for advice on interim and final parenting orders.